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CASE 



OF 






THE SEIZURE 



OF THE 



SOUTHERN EKYOYS. 



EEPEINTED, WITH ADDITIONS, 



FKOM THE "SATTJEDAY EEVIEW. 



" Turno tempus erit, magno cum optaverit emptum. 
" Intactum Pallanta, et cum spolia ista diemquei! 
" Oderit." 



LONDON: 

JAMES EIDaWAY, PICCADILLY, W. 

1861. 



THE SEIZURE 



or 



THE SOUTHERN ENVOYS 



A CRISIS lias arrived— a little sooner than was ex- 
pected — which raises questions of jiublic policy and 
public law of the gravest character. The facts which 
have led to this result are now known to every news- 
paper reader in both hemispheres, and may be stated 
in a few words. A screw- steamer of war, the San 
Jacinto, belong-ing- to the North American States, 
waylaid the Eng'hsh Royal West India Mail steamer 
in the Bahama Channel (whether in Spanish waters 
or not is uncertain), on the 8th of November, and 
brought her to by firing- a round shot across her bows. 
A lieutenant from the San Jacinto boarded her, and 
afterwards, aided by a larg-e force of sailors with 
drawn cutlasses, forcibly took possession of Mr. Mason 
and Mr. Slidell, Envoys supposed to be accredited by 
the Southern States to Great Britain and to France, 
and of their two secretaries, with certain papers and 
bag-g-age. The officer in charg'e of the mail-bag's, 

A 2 



^ 



a Commander in the Royal Navy, protested strong-ly 
ag-ainst the insult offered to the British flag-, as did 
the captain of the vessel ; and both claimed the 
Envoys as under the ' protection of Eng-land. The 
American lieutenant disreg-arded the protest, seized 
the men, and suffered the E03 al Mail Steamer to 
pursue her voyag"e. Stripped of criminations and 
recriminations as to the coarseness and brutality of 
the manner in which the act is said to have been 
done on the one side, and as to the violence of the 
remonstrances on the other, these are the material 
facts of the case. 

As soon as the intellig'ence reached Eng-land, the 
Government met in Cabinet Council. Nothing- could 
be more dig-nified, calm, and honourable than the atti- 
tude of Eng-land at this moment. She waited, with 
firm resolve indeed, but without petulance, rodomon- 
tade, or fury, for the announcement of the advice 
which the Ministers would tender to the Queen. 
Nothing- could be wiser than the course which the 
Ministers pursued. They g-ravely considered whether 
the laws which g-overn the intercourse of independent 
States had or had not been broken. Settino- aside all 
questions of mere feeling-, they called in the counsel of 
the leg-al officers whom the Constitution provides for 
their aid ; and after adequate deliberation they deter- 



mined^ we believe quite unanimously, that international 
law had been doubly violated by the act of the San 
Jacinto — that by this act both the honour of their 
country had been assailed, and an injury done to 
those whom she was under an oblig-ation to protect. 
Let us pause here for an instant ; for the lesson is 
worthy of our study. Nobody can be much in society 
without being- acquainted with a class of persons who 
decr}^ the study of international jurisprudence. '^ AVhat 
" can it matter now what Grotius has said ? who cares 
^^ about Bynkershoek? Never mind Vattel. Times 
" are chang-ed since the days of Lord Mansfield and 
" Lord Stowell. Story and Wheaton are dead, 3^ou 
" know 3 and then the verses in the Anti- Jacobin. ^^ 
Another class of persons point to the instances in 
which the law has been broken, and by the precedents 
of crime defend the invasion of rig-ht. But the flip- 
pancy of the former and the shallowness of the latter 
declaimers leave untouched the fact that there is, after 
all, a law to which States, in time of hostilities, appeal 
for their justification— that there are writers whose 
exposition of that law has been stamped as impartial 
and just by the consent of the g-reat family of States — 
that they are only slighted by those upon whose crimes 
they have, by anticipation, passed sentence— that 
municipal, as well as international law is often evaded 



6 

and trampled down^ but exists nevertheless — that 
States cannot^ without dang-er as well as obloquy^ 
depart from doctrines which they have professed as 
the g'uide of their relations with the commonwealth of 
Christendom. To see a mighty State like Eng-land 
doing" homag"e to this principle is a noble spectacle. 
She mig'ht^ in hot haste^ have smitten her ag'g'ressor 
in his most vulnerable part. She mig'ht have raised 
his blockade^ and been hailed as a benefactor by her 
own citizens and every maritime State. She mig'ht 
have revelled in the applause of the many^ at home 
and abroad^ who confound rashness with vig^our and 
violence with energy. But she put aside the tempta- 
tion. She inquired what justice and rig'ht, affirmed 
by usag-e and precedent, warranted j and, finding- their 
voice in her favour, she demanded the reparation 
which is her due, and with the triple armour of a 
just cause she calmly abides the issue. The question 
which we are about to examine is, whether she has 
rig-htly interpreted the law which she professes to 
obey. In the prosecution of this inquiry we will 
endeavour to leave no arg-ument or precedent adverse 
to her claim unconsidered. 

First, it must be admitted that America was clearl^^ 
entitled to visit and search a neutral merchant ship 
on the hig'h seas. She has never parted with a 



bellig-erent rig'ht firmly established by the case of 
the Maria, and which she foresaw might one day be 
of great value to her. The Trent, however, was not 
a vessel of that class. She was on the contrary of 
a class which one of the oracles of American juris- 
prudence has pronounced, not unreasonabl}^, to be 
exempt from liability to condemnation for carr}dno' 
the despatches of the enemy. Mr. Lawrence, in his 
last edition of Wheaton (Ed. 1855, p. 567), observ- 
ino- on the dictum of Lord Stowell with respect to 
the penalties incurred by a neutral vessel carrying- 
despatches, says: — 

It is conceived that the carrying of despatches can only invest 
a neutral vessel with a hostile character in the case of its being 
employed for that purpose by the belligerent, and that it cannot 
affect with criminality either a regular postal packet or a mer- 
chant ship which takes a despatch in its ordinary course of convey- 
ing letters, and with the contents of which the master must 
necessarily be ignorant. This view, it is supposed,, is not incon- 
sistent with the text, which refers to a fraudulent carrying of the 
" despatches of the enemy." 

Since the former European wars, some Governments have esta- 
blished regular postal packets, whose mails, by international 
conventions, are distributed throughout the civilized world ; while 
in other countries every merchant vessel is obliged to receive, till 
the moment of its setting sail, not only the despatches of the 
Grovemment, but aU letters sent to it from the post-offices. 

The author cites Hautefeuille, Droits des Nations 
Neutres, t. 2, p. 463, who is of the same opinion, and 
the Postal Treaty of December 1848, between the 



United States and Great Britain. This treaty pro- 
vides that when war has broken out between the two 
countries, their respective mail packets shall be per- 
mitted to continue without molestation their service, 
until six weeks' notice be given by the Government 
of either country ; after the lapse of which period, the 
packets are to return under special protection to their 
ports. Certainly, the inference from this partial im- 
munity of the mail packets between the two countries 
when belligerents, is favourable, at least, to the sug*- 
g'estion of the entire immunity of this class of vessels 
when either country is neutral, 

Nor is it immaterial to observe that on board this 
Royal mail steamer there was a Commander of the 
Royal Nav}^, not, indeed, in command of the ship, 
but representing- the Crown as far as the mail was con- 
cerned, and imparting" a character to the vessel which 
at least took it out of the character of an ordinary 
private vessel. We are satisfied that not only America, 
as we have shown, but France, would have reg-arded 
it as apuhlic vessel. It is clear that neithei* the Com- 
mander nor the letters in his custody were amenable to 
the Prize Court. Let us concede, however, this point 
in favour of America, ag*ainst her own authority. 
The act of the San Jacinto in visitino* and searchino;- 
the Trent is by this concession, reduced from the 
violation of a strict right to a violation of comity. 



9 

We will pass to the next point. If the San Jacinto 
had a rig-ht with respect to the Trent, she had also a 
duty. The duty was to take the English vessel into 
an American port and there to try her fairly^ with full 
right of appeal^ in the Court of international justice, 
required by the law, usage, and treaties of Christen- 
dom, called the Prize Court. The attempt to claim 
the privileges and shirk the obligations of a beUigerent 
is simply a monstrous outrage which affects every 
neutral State. It is worse than idle to suggest that 
the decision of the Prize Court must have been hostile 
to the Trent because she carried despatches and envoys 
from the belligerents. In the first place, it proves too 
much, for it renders the proceedings of all Prize 
Courts nugatory, and makes the rough sailor at once 
captor and judge. The individual might as well exe- 
cute his own justice on the person he alleges to have 
injured him. It is an argument subversive of all ami- 
cable relations between States. It can have but one 
effect — to render neutrality impossible. It has often 
happened that Prize Courts have condemned captors 
belonging to their own country in the costs and damages 
of their capture. No longer ago than during the last 
war, England paid large sums to feeble foreig'n States 
in consequence of decisions of her Supreme Court 
of Prize adverse to EngUsh caj^tors. There is no 



10 

reason to doubt that the judg-es who sit in the chair 
of Story would do justice as well as the successor of 
Stowell* — though^ alas ! it mig-ht be practically of 
little consequence^ if the President should subject the 
Judg-e of the Prize Court^ as well as the Judg-e of 
the municipal tribunal^ to the custody of a military 
sentinel. 

In the second place^ the anticipation of the judge- 
ment of the Prize Court is wholly erroneous. The 
Trent was not, so far as we know, carrying* con- 
traband despatches; and she was carrying" persons 
whose character exempted them from the operation 
of hostilities. The despatches which are contraband 
are communications from a bellig-erent to another 
part of its own kingdom, or to a colony, or to an ally 
with respect to naval or military operations, or 
political affairs. These are the kind of despatches 
which Lord Stowell held (with the approval of Ame- 
rican jurists) to be contraband. (The Caroline — The 
Atalanta,2 RoUnson, Ad. Rep. 440 — 4G1.) But 
despatches from a belligerent (Lord Stowell saj^s) to 



* The adoption by America of the decisions of the English 
Prize Court is a fact of great value, " there is scarcely a decision 
" in the English Prize Courts at AVestminster which has not 
" received the express approbation and sanction of our national 
" Courts," says the great American Chancellor Kent, vol. i. p. 68. 



11 

his consul resident in a neutral State may lawfully be 
carried by a neutral vessel, because the functions of 
the consul relate to the joint commerce in which the 
neutral as well as the bellig-erent is eng-ag-ed. {The 
Madisoiiy Edwards, Ad. Rep. 224.) Much less, then, 
are the despatches of a bellig'erent to a neutral re- 
lating merely to questions of amicable intercourse 
between the two States, of the nature of contraband. 
{Tlie Caroline, 6 Hob. Ad. Hep. 468.) It is mani- 
fest that the interests of the neutral may imj^era- 
tively demand such an intercourse. Indeed, but little 
reflection will show that the lawfulness of such inter- 
course is a necessary consequence from even the 
limited recog'nition of a de facto State as a bellig-erent. 
A State so recognised must have org-ans of commu- 
nication with the neutral. How is the neutral, for 
instance, to obtain redress for injuries done to her 
own subjects ? She must make her complaints throug-h 
some reg-ular channel— in other words^ she must 
recog-nise, for this purpose at least, a Government and 
a diplomatic officer. But the neutral has rig-hts 
beyond this. She is entitled to communicate with 
both the belligerents for the purpose of bringing- 
about peace ; for a state of war is a state of un- 
merited suffering to the neutral, which she is justified 
in seeking- by all lawful means to bring* to an end. 



1§ 

" It would be almost tantamount (Lord Stowell 
says) to preventing" the residence of an ambassador 
in a neutral State, if he were debarred from the 
means of communicating- with his own." Most 
clearly, therefore, the despatches were not of the 
nature of contraband j and on this g-round the Trent 
would have succeeded in the Prize Court. 

The next question is as to the persons of the envo3^s. 
It would be strang-e if the living" man were to be con- 
traband when his despatches were innocent. But it is 
reported to be said in America, that thoug-h the envoy 
is not exactly contraband (which would be ridiculous), 
Phillimore may be cited as an authority to show, that 
he may be seized on his voj'^ag'e. In PhilHmore's 
book there are two passag-es on the subject — one in 
which he is deahng* with the question of a civil war, 
and he says: — '^ When rebellion has g'rown, from the 
numbers who partake in it, the severity of the strug-g-le, 
and other causes, into the terrible mag-nitude of a civil 
war, the emissaries of both parties have been consi- 
dered as entitled to the privileg-e of ambassadors so far 
as their personal safety is concerned ^ in hoc eventu 
[Grotius says] gens una quasi duce gentes habetur" — a 
very remarkable expression. Phillimore is here speak- 
ing of emissaries between the parties to the civil war. 
The argument is of course still stronger as to emis- 



13 

saries to a third State ; and in a note he cites the 
opinion of B3 nkershoek, which is to the effect that 
if both parties to the civil war be de facto independent, 
they enjoy the full rights of legation • but if one party 
be still strug-g-ling", and not yet independent, he enjoys 
these rig-hts with regard to third States only : — " ut 
legatio pleno jure utrimque consistat status utrim- 
que liber desideratur, qui si ab un^ parte duntaxat 
liber sit ab e4 missi tantum jure legatorum utuntur/' 
Then follow these words, decisive of the present ques- 
tion : — " ab alia missi ad externum principem habentur 
pro nunciis" [Phillimore, v. 2, pp. 143-4). This 
is exactly the position of law now rehed upon by 
England. In the other passage — to which alone it 
appears the Americans have referred — (vol. iii. p. 368), 
Phillimore is dealing with the subject of contraband, 
and he uses the very words of Lord Sto well's judg- 
ment in the Caroline^ which leg'alizes the carrying of 
diplomatic despatches by the neutral vessel. Lord 
Stowell says : — 

It is, indeed, competent for a belligerent to stop the ambassador 
of his enemy on his passage ; but when he has arrived, and has 
taken upon himself the functions of his office, and has been ad- 
mitted iato his representative character, he is entitled to peculiar 
privileges, as set apart for the protection of the relations of amity 
and peace, ia maintaining which all nations are, in some degree, 
interested. With respect to this question, the convenience of the 
neutral State is also to be considered; for its interests may 



14 

require that the intercourse of correspondence with the enemy's 
country should not be altogether interdicted ; it would be almost 
tantamount to preventing the residence of an ambassador in a 
neutral State, if he were debarred from the means of communi- 
cating with his own. 

Lord Stowell does not here lay down the doctrine 
that a beUig-erent ma}' take an envoy out of a neutral 
ship. That question was not before him. He 
founds chiefly upon Vattel (whom the earher part of 
his judgment especially cites) the general dictum that 
the belhgerent may seize the ambassador of another 
belligerent at a certain period, namely, before he has 
been accepted by the State to which he is sent j after 
that event, the belligerent may not seize him any- 
where. Before that event, he may seize him — but 
where ? Why, the reference to Vattel clearly shows 
— when he is passing through his own territory. 
Vattel justifies the seizure by England of a French 
ambassador in passing, on his way to Berlin, through 
the Electorate of Hanover, because Hanover at that time 
belonged to England. '" Non seulement done on pent 
justement refuser le passage aux ministres qu'un 
ennemi envoie h d'autres souverains: on les arrete 
meme s'ils entreprennent de passer secrMement et 
sans permission." Where? ''Dans les lieux dont 
on est maUre^ — {Droit des Gens, 1. 4^ c. 7, s. 85.) 
Not on board a neutral royal mail ship on the high 



15 

seas. Let Lord Stovvell's judg-ment be read b}^ the 
lig-ht of this passag-e in Vattel, to whom he had 
referred. These are his words : 

The former eases were cases of neutral ships, carrying the 
enemy's despatches from his colonies to the mother country. In 
all such cases you have a right to conclude that the effect of those 
despatches is hostile to yourself, because they must relate to the 
security of the enemy's possessions, and to the maintenance of a 
communication between them ; you have a right to destroy these 
possessions and that communication ; and it is a legal act of 
hostility to do so. But the neutral country has a right to pre- 
serve its relations with the enemy ; and you are not at liberty to 
conclude that any communication between them can partake, in 
any degree, of the nature of hostility against you. 

The enemy may have his hostile projects to be attempted with 
the neutral State ; but your reliance is on the iutegi'ity of that 
neutral State, that it will not favour nor participate in such 
designs, but, as far as its own councils and actions are concerned, 
will oppose them. And if there should be private reason to 
suppose that this confidence in the good faith of the neutral State 
has a doubtful foundation, that is matter for the caution of the 
Government, to be counteracted by just measures of preventive 
policy ; but is no ground on which this Court can pronounce that 
the neutral carrier has violated his duty by bearing despatches 
which, as far as he can know, may be presumed to be of an inno- 
cent nature, and in the maintenance of a pacific connexion. — 
(Robinson, Reports. Vol. vi. p. 466. The Caroline.) 

It does not seem to be denied in America that this 
is both the g*eneral and the correct law respecting- 
ambassadors ; but the conduct of Eng-land eig-hty-two 
3^ears ag-o is cited ag-ainst her. It is stated in a letter 
of Mr. Sumner (not we believe the Chairman of the 



16 

Committee of Foreig-n Relations in Congress) that 
Eng-land^ in 1780^ took Mr. Laurens, the Envoy, from 
the rehel colonies of North America to Holland, out 
of a Dutch ship, and committed him to the Tower as 
a traitor. For the moment we pass by the chang-e 
effected in International Law since those days with 
reference to colonies which have established their 
independence. We presume that America does not 
think Mr. Laurens was a rebel, thoug-h the denial 
places her at present in an awkward dilemma — that 
she does not approve his being- sent to the Tower — 
that she does not, in fact, adopt the only precedent 
which she quotes. Suppose, however, these diflSculties 
are surmounted, our next remark is, that the facts 
of the seizure are not only most superficially but 
most inaccurately stated. We will take from Adol- 
phus a very correct epitome of them : — 

Meanwhile, [says this historian] the state of sullen dissatisfac- 
tion which occasioned the abolition of the ancient connexion 
between Great Britain and Holland, resolved itself into active 
hostility ; the mystery which had covered the views and conduct 
of the Dutch was removed ; and the Court of Grreat Britain was 
impelled to a firm and decisive mode of conduct, as well in resent- 
ment of past treachery, as with a view to counteract the effects of 
the neutral league. The Vestal frigate, commanded by Captain 
Keppel, took, near the banks of Newfoundland, a Congress pacJcet. 
The papers were thrown overboard ; but, by the intrepidity of an 
English sailor, recovered with little damage. 

They fully proved the perfidy of the Dutch, who, before the 



17 

existence of any dispute with Great Britain, had entered into a 
formal treaty of amity and commerce with the revolted colonies, 
fuUy recognising their independence, and containing many stipula- 
tions highly injurious to England and beneficial to her enemies, 
both in Europe and America. Disagreements on some of the 
arrangements had occasioned delays in its completion ; but Henry 
Laurens, late President of the Congress, who was one of the 
passengers in the captured vessel, was authorized to negociate 
defijiitively, and entertained no doubt of success. On his arrival 
in London, Mr. Laurens was examined before the Privy Council, 
and, on his refusal to answer interrogatories, committed to the 
Tower. — {Adolphus, History of England, vol. iii. p. 221.) 

Adolphus is perfectly accurate in saying* that 
the Mercury y commanded by Captain Pickles y was, 
as the names indicate, an American bellig-erent vessel. 
The despatches from Captain Keppel to the Admiralty 
aiFord proof of the fact. The vessel was condemned 
in the Yice-Admiralty Court (commissioned as a 
Prize Court), in Newfoundland. Laurens was broug-ht 
to Eng-land. Now observe the difference (setting* 
aside the question of the Royal Mail Packet) between 
this case and that of the Southern Envoys. First, 
despatches were thrown overboard — an act which 
alone almost enures to the condemnation of a neutral 
ship. Secondly, the ship was not Dutch, and neutral, 
but American, and bellig-erent. Thirdly, Holland was 
only professedly neutral, but really belligerent ag-ainst 
England, as those very despatches demonstrated. 
The declaration of war by England ag-ainst her fol- 

B 



18 

lowed close^ namely^ on the 20th December, 1780. 
Fourthly, the ship as well as the man was captured. 
So clear, indeed, was the justice of the seizure, that 
neither Holland herself nor any other State uttered, 
then or afterwards, the semblance of a remonstrance 
ag-ainst the act. This supposed precedent turns out, 
then, to be no precedent at all. Were it otherwise, 
international law is not made out of a single bad 
precedent, but out of sound principles applied to each 
case as it arises, and illustrated by consistent practice. 
Next we come to what may be called the impressment 
argument. It is urg-ed by Americans that England, 
during the last war, continually took by force English 
sailors and soldiers out of American ships. This is 
a strange argument in the mouth, so to speak, of 
America. She always complained of this conduct as 
an unjust extension of English municipal law beyond 
its proper limits — as an invasion upon the most sacred 
rights of independent nations. Does America mean 
now to practise what she then condemned ? to stultify 
her most solemn repeated public acts ? How can 
a State which deliberately does what she has up to 
this moment consistently reprobated, appeal hereafter 
to any princij)les of International justice. Retaliatory 
measures of this kind at the time would perhaps not 
strengthen the moral influence of a State; but re- 



19 

taliatory injustice in a subsequent war for the offences 
of a former war, is a solecism in public morality, 
policy, and justice. We are inclined to think that 
Eng*land was wrong* and America rig-ht in this matter. 
We subscribe to the reasonino- of her President in 
1812. We desire to impress the language of Madison 
most deeply upon all our readers : — 

British cruisers [says the President] have been xa the continued 
practice of violating the American flag on the great highway of 
nations, and of seizing and carrying off persons sailing under it, 
not in the exercise of a belligerent right, founded on the law of 
nations against an enemy, but of a municipal prerogative over 
British subjects. Britisli jurisdiction is thus extended to neutral 
vessels in a situation where no laws can operate but the law of 
nations and the law of the country to which the vessels belong. . . 
Could the seizure of British subjects iu such cases be regarded as 
within the exercise of a beUigerent right, the acTcnoioledged laws 
of war, which forbid an article of captured froperty to be adjudged 
without a regular investigation before a competent tribunal, would 
imperiously demand the fairest trial, where the sacred right of 
persons are at issue. In place of such trial, these rights are sub- 
jected to the will of every petty commander. — {^Annual Beg. for 
1812,^7.435.) 

A person surely does not lose, but increase, his 
" sacred rig'hts" by becoming" an ambassador » But, after 
all, the cases of the forcible impressment of seamen 
and the seizure of the envoys are wholly distinct. 
England claimed and had a right to search the neutral 
vessels for enemy's g-oods ', and finding- accidentally in 
the course of her search deserters from her navy on 



20 

board, she claimed — unjustly if you will — the muni- 
cipal rig-ht of bringing them back to the service from 
which they had escaped. Such a ri^ht was never 
claimed against passengers or civilians. The impress- 
ment of General Washington's nephews, mentioned 
in Jefferson's Memoir (vol. iv. p. 133), if it ever hap- 
pened, was a simple outrage, unless it were founded 
upon a complete error as to the persons. Be, how- 
ever, the conduct of England right or wrong as to 
the impressment of seamen, it furnishes not even a 
bad precedent, not even exemplum scelerisj for the 
seizure of envoys. It remains to say a few words 
upon the other cases put forth in support of the 
San Jacinto. 

The case of the Friendship (6 Robinson's Eep. 430), 
has been also cited against the demand of England, 
but how foolishly, appears from the following statement 
of facts. 

The Friendship was a neutral vessel, engaged as a 
transport by the French Government, for the conve}^- 
ance of 90 mariners and others from a port in the 
United States to Bordeaux. That vessel was con- 
demned on the ground that she was a transport in 
the service of the French Government. It was con- 
tended that the persons on board were only a few in- 
vahds, returning to their country, and Lord Stowell, 



21 

in g'iving" judgrnent^ observed^ (p. 428) " It would be a 
" very different case if a vessel appeared to be carrying- 
^' only a few individual invalided soldiers or discharged 
^' sailors^ taken on board by chance^ and at their own 
"charg-e. Looking* at the description g-iven of the 
^^ men on board^ I am satisfied that they are still as 
"effective members of the French Marine as any 

"can be They are persons in a military 

" capacity who could not have made theu* escape in 
" a vessel of their own country." 

Lord Stowell then proceeds to say — " It is asked 
^^ will you lay down a principle that may be carried 
" to the length of preventing* a military officer^ in 
" the service of the enemy^ from finding* his way home 
" in a neutral vessel, from America to Europe ? If 
" he was g'oing* merely as an ordinary passeng*er, as 
"other passeng*ers do, and at his own expense, the 
"question would present itself in a very different 
"form. Neither the Court, nor any other British 
"tribunal, has ever laid down the principle to that 
" extent. This is a case differently composed. It is 
" the case of a vessel letting* herself out in a distinct 
" manner, under a contract with the enemy's Govern- 
" ment, to convey a number of persons, described as 
^^ being in the service of the enemy, with their military 
" character travelling* with them, and to restore them 
^^ to their own country in that character,'' 



We consider the law here laid down to be quite 
sound^ but unless we have been much deceived, not 
long" ag-o, an American vessel, carrying a General 
Corti, soldiers, and ammunitions of war, going to the 
aid of the Neapolitan rehelsy was captured by a 
cruiser of the then legitimate Sovereign of Naples, 
and nevertheless claimed by the Americans, upon the 
averment that she had committed no breach of in- 
ternational law, and was restored by that tottering 
Government. Fifty such precedents, we admit, would 
not be law, but the recollection of this very recent 
event may be useful to the Northern States at this 
moment. 

The case of the Orozembo (6 Eob. Ad. Eep. 430) 
in 1807, was that of a neutral ship employed in the 
service of the enemy in transporting military persons 
to its colonies. Nobody questions the right of 
America to bring for adjudication into the Prize 
Court a private neutral vessel so misconducting her- 
self. Then as to the case of Lucien Buonaparte, it 
is misstated in all the material points. 

Lucien Bonaparte, compelled by the tyranny of his 
brother to fly from his retreat in Italy, applied to 
his brother-in-law, the King of Naples, for a vessel 
to transport him to America. Murat gave him the 
desired aid. The Hercules, an American vessel 



03 

which had lately been sequestrated by the orders of 
Napoleon at Naples, was fitted up at g-reat cost by 
Murat for the conveyance of Lucien, his family, and 
suite to the United States, the American captain was 
put on board, and she was escorted by a Neapohtan 
ship-of-war to Civita Vecchia. Lucien applied to the 
English Minister atCag'hari for a passport g'uaranteeing' 
the vessel from the seizure of British cruizers and was 
refused. The Hercules weig'hed anchor with Lucien's 
very numerous suite on the 5th of August, 1810. 
A storm drove the vessel into Cagliari. The King* of 
Sardinia refused permission to Lucien to land, and 
desired the Hercules to leave the bay. The Eng-lish 
Minister was again asked for a guarantee against 
British cruizers, and he again refused the request. 
The Hercules had scarcely left the Sardinian waters 
before she was captured by two British frigates j a 
prize crew was put on board the Hercules. Lucien, 
at his own request, and for his own personal conve- 
nience, was transferred to the Pomone, one of the 
frigates. Both the Hercules and the frigate sailed 
for Malta, where there was a Prize Court. Lucien 
was afterwards conveyed to England, where he 
remained three years. {Memoirs of Lucien Buona- 
parte, vol. 2, pp. 29—43.) 

It is therefore perfectly clear that the Hercules was 



24 

a belligerent ship lawftilly seized and broug-ht into the 
Prize Court, and that Lucien neither claimed nor 
possessed any personal or professional immunity 
from capture. 

Again, as to the Caroline, in 1837, never was a • 
more justifiable act than the burning" of that vessel. 
She was supplied by American citizens on the Ame- 
rican side of the Niagara, with implements of war for 
the purpose of attacking an English colony j remon- 
strances having proved unavailing, the vessel was 
seized as a matter of self-defence, and the act fully 
justified at the time to the American Government. 
(3 Phillimore, p. 50.) 

Lastly, as to the seizure of the Irish rebel, McManus, 
in 1848, he was taken by the police, in an English 
port, within English territorial jurisdiction, out of an 
American merchant-ship. No jurist ever did or will 
deny the lawfulness of the act. 

What, then, is the conclusion of reason and justice 
upon the whole case ? Bad precedents, if they existed, 
would not make the law j but they are shown not to 
exist. On the other hand, all the reasoning irom 
acknowledged principles condemns the act of the San 
Jacinto. Nor must it be forgotten that this question 
must be looked at by England, not merely from the 
side, so to speak, of the injury done to herself, but from 



25 

the side of her duty towards those who were under 
her protection. We have not been in the habit of 
deserting" those who have trusted us. God forbid that 
we should begin to do so now. Happily the firm 
attitude of our Government leaves no arround for such 
a craven fear. The envoys torn by violence from the 
protection of our flag- must be restored^ and with 
due apology for the outrag-e. We do not seek to 
humihate the Northern States of America. To make 
make reparation is humiliation only to a petty^ mean- 
spirited State. America^ like Eng-land, is too g-reat 
to be afraid of admitting- that she has been in the 
wrong-. The truth is that she has g-ot into this 
scrape from a silly affectation of not seeing* that 
which everybody else sees. When dissensions in a 
State assume the proportions of civil war^ when the 
status of belhg-erents is constituted, and the rig-hts 
of war and the oblig-ations of neutrals are involved, 
it is idle to talk to other States of ^^ rebels" and 
" rebellion," and demand the a232)lication of municipal 
law. It is the error into which Eng-land fell nearly 
a century ag'O when the United States became inde- 
pendent. Then it was that the great statesman and 
orator, who incurred the disfavour of courts and mobs 
for his steady support of the claims of the revolted 
American colonies, said to Eng-land, on behalf of 

c 



26 

America, that which America would now do well 
to say to herself : " Strangle incong-ruities will ever 
perplex those who confound the unhappiness of civil 
dissensions with the crime of treason." — [Burke's 
letter to the Sheriffs of Bristol on the affairs of 
America, 1777.) 



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